Academic round-up

Posted Tue, June 21st, 2011 11:37 am by Amanda Frost

Much has been written about the role of the so-called Tenth Justice, otherwise known as the Solicitor General. In a recent article, Margaret and Richard Cordray report that over the last thirty years the Solicitor General’s office has dramatically reduced the number of cert. petitions it files each Term "“ a development that they believe has significantly contributed to the Court's shrinking docket.

The Cordrays found that the Solicitor General now files approximately 15 cert. petitions each Term, down from an average of 50 cert. petitions during the 1980s. As has been widely discussed on SCOTUSblog and elsewhere, the Court's caseload has declined dramatically since the mid-eighties, contracting from an average of 170 cases per Term in the mid-1980s to 80 cases per Term during the Roberts Court. Although the Cordrays acknowledge that the "causal relationship is murky," they argue that the Solicitor General's reluctance to file cert. petitions has had a “direct and independent impact” on the Court’s docket. And they are critical of the Solicitor General's decision to remain on the sidelines at the cert. stage. By doing so, they contend that the Solicitor General’s office has ceded its influence over the Supreme Court's agenda to aggressive private litigators, who have had greater relative success in persuading the Court to take their cases in the Solicitor General’s absence.

The Cordrays also make some interesting observations about the Solicitor General's changing role in merits litigation. Since 1994, that office has participated in an average of 75% of all merits cases each Term, up from 60% in the 1950s through the 1980s. But the Solicitor General is now much more likely to appear as amicus curiae than as a party to litigation, a trend that is of course related to its diminished role at the cert. stage. The Cordrays report that the Solicitor General is highly successful in that new role, supporting the winning party close to 90% of the time during the first few years of the Roberts Court–a finding that will come as no surprise to Court watchers.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.